July 10, 2006

The same court that made Massachusetts the first state to legalize gay marriage ruled Monday that a proposed constitutional amendment to ban future same-sex marriages can be placed on the ballot, if approved by the Legislature.

The ruling was in a lawsuit brought by gay-rights supporters who argued that Attorney General Tom Reilly was wrong to approve the ballot measure because the state constitution bars any citizen-initiated amendment that seeks to reverse a judicial ruling.

In a unanimous decision, the Supreme Judicial Court said the constitution does not bar citizen initiatives from making prospective changes to the constitution, even if that effectively overrules the effect of a prior court decision.

Because two consecutive legislative sessions must approve the measure, it won't go on the ballot until 2008. Meanwhile, same-sex marriage is legal in Massachusetts, and if the amendment is passed, it won't undo the existing marriages. That will be an odd state of affairs. Don't you think that anomaly will make some citizens want to vote against the amendment?

47 comments:

Also odd is that a number of businesses in MA are terminating domestic partnership benefits, on the grounds that they were instituted when gay marriage was illegal, and now that it is legal, it would be discriminatory to grant such to gays and not to straights.

In other words, there is now a legal downside to providing domestic partnership benefits to gays that was not as grave before. The result is that gay couples need to marry to get benefits now.

It would be peculiar for the court to have ruled any other way - to do so would be to baldly admit that their decisions are rooted not in the MA constitution, but in some higher authority. They would have to have come right out and said "we're running the show here, and we will do what's right" and I just don't think they're ready to be that honest with themselves yet.

However:"Because two consecutive legislative sessions must approve the measure, it won't go on the ballot until 2008. Meanwhile, same-sex marriage is legal in Massachusetts, and if the amendment is passed, it won't undo the existing marriages. That will be an odd state of affairs. Don't you think that anomaly will make some citizens want to vote against the amendment?"

You come home; the barn door is open; some of the horses have already bolted, while the rest are milling around inside. Does the fact that some have bolted lessen your concern to shut the barn door to stop the others leaving?

Or how about this: since Roe v.Wade, millions have been slaughtered with the full sanction (and often, outright co-operation) of the state. Every day, more join their ranks. Still, it's been thirty years, and we can't get those lives back; does that anomaly make overturning Roe and banning abortion a moot point?

What happens if the people get so many signatures to get an initiative on the ballot and the lock-step legislature doesn't pass the bill? Do the people then have to wait until the legislature personnel changes by voting out the members? Is there any recourse to forcing the issue onto the ballot without the legislative approval?

I don't think that's a fair assumption. Polls of Massachusetts voters have shown more people support same sex marriage than oppose it. Check here (49-50% support in 2003) and here (62% support in 2005). And I don't see support declining in the two years before the issue would be given to the voters.

It strikes me that the title is a little off – I don’t think that the MA SJC really “opened” itself to anything; I would guess it simply recognized that the petitioners were trying to convince the Mass. SJC to be creative and “close” one possible way to override a court opinion.

The MA constitutional provision for the state AG to toss out ballot referendums that disagree with court opinions makes sense where a court has already ruled that a similar law was unconstitutional. It makes less sense when the ballot is for a change to the constitution (although to be fair, the language does appear a bit ambiguous).

On a related issue (Bruce Hayden's comment) – my current company is a CA-based company with domestic partner benefits. Those benefits are not restricted to same-sex couples, and the senior HR folks I talked to about this a couple years ago (before legal same-sex marriages anywhere) thought that the company would be on shaky legal ground offering a benefit with a lower eligibility requirements to only same sex couples. Has anyone challenged them in court anywhere?

First, this is a process to amend the state constitution, not a simple ballot measure, so there are multiple hoops to jump through, as there should be. Unlike a simple law (which can be passed by either the legislature or by ballot), this has to go through both.

If some legislators want to push through an amendment, it has to pass through a majority of the house and senate on two different sessions, and then go to a ballot. If it is an initiative petition amendment (like this one is), it only needs 25% of the legislature (twice), so it seems that the authors of the MA constitution did address your concerns. I would guess that if a ballot amendment can’t even get 25% with the legislators, it most likely has some fundamental problems (such as bad or unworkable wording).

If it goes to a vote, it will probably pass (but not get a majority). More likely is that the senate president will try to play games and close the joint constitutional session without ever taking a vote on the measure.

amba said..."The amendment is a very narrow one that would also ban civil unions, as I understand it. What a mess."

If there is a mess, it exists to the entent of fallout from courts going too far. The courts found a right in the Constitution which, on an honest reading, simply isn't there. The "mess", as you put it, is simply the reaction. If democracy means anything, it means that the people prevail, not that they will get the right answer. This is, of course, not a pure democracy; the majority is legitimately tharted by a constitution. If the popular will prevails on a law that is unjust and unconstitutional, then the courts can strike it down. But when the law is inadvisable, unfair, unjust, but none-the-less constitutional, the job of the courts is to defer to the popular will, not "correct" it.

In my view, a state may permit homosexual marriage; it is not restrained from doing so by anything in the federal constitution, and nor should any be. But by the same token, nor is any state obliged to do so.

The amendment is a very narrow one that would also ban civil unions, as I understand it. What a mess.

The actual text of the proposed amendment is as follows:

“When recognizing marriages entered into after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman.”

I agree that it’s drafted fairly narrowly but I don’t agree that it would ban civil unions.

In my view, a state may permit homosexual marriage; it is not restrained from doing so by anything in the federal constitution, and nor should any be. But by the same token, nor is any state obliged to do so.

Simon is now a legal expert for every State Constitution in the country.

DTL,I'm sorry if the implication were insufficiently clear that I was talking in terms of obligations imposed by the Federal Constitution. Obviously, you're entirely correct that individual state constitutions may permit, deny or require state recognition of homosexual marriage, or for that matter (as I suspect is the case) remain absolutely silent on the question.

"Polls of Massachusetts voters have shown more people support same sex marriage than oppose it. Check here (49-50% support in 2003) and here (62% support in 2005). And I don't see support declining in the two years before the issue would be given to the voters."

I wouldn't be so optimistic, I think you can generally knock 15% off what any poll says on gay (or other minority) rights. I'd say at most 47% favor it and never underestimate the persuasive powers of the anti-gay lobby.

The weird thing is that it doesn't seek to dissolve marriages which have already occured, just what on earth is the logic there?

in the 1970's, conservatives opposed a federal equal rights amendment, and one of their reasons was that it would allow gay marriages.

So they can't have it both ways, can they? Opposing the ERA because it would allow gay marriage and using that as a reason to defeat it. But then when the ERA passes, trying to say that the amendment never really meant that at all.

Michael -- If you dissolve existing marriages, you run into "ex post facto" lawmaking, which is actually unconstitutional because it is specifically disallowed in the U.S. Constitution (and applies definitively to the States thanks to Amendment).

I know some people here will find it hard to get their heads around something being constitutional or unconstiutional based on the actual text of the document. But there it is.

"The weird thing is that it doesn't seek to dissolve marriages which have already occured, just what on earth is the logic there?"

Why is that weird? To dissolve such marriages would be to make the statute have retroactive effect; retroactive laws are as close to the definition of tyranny as you can get. For the rule of law to have meaning, people have to know that they cannot be punished for what they legally do today even if it is made illegal tommorow. It strikes at the very heart of a conception of justice to even imply that you might be able to punish someone for an action which was not criminal when they undertook it. There are vanishingly few applications where they can ever be anything but presumptively invalid, and in any event, the U.S. Constitution would bar such a law or constitutional provision.

"So they can't have it both ways, can they? Opposing the ERA because it would allow gay marriage and using that as a reason to defeat it. But then when the ERA passes, trying to say that the amendment never really meant that at all."

Doesn’t matter. A proposed amendment to the federal constitution that passes in a State’s legislature has zero effect on that State’s laws unless and until it passes enough States to amend the federal constitution.

No, it failed. It is null and void. It doesn't matter how many states ratified it it if was fewer than 38, which it was. Now, if your point is that some states subsequently ratified similar texts as amendments to their constitutions, that makes more sense, but in fact gets you no mileage here - one may oppose an amendment to the federal constitution and still support it at a state level, and vice versa, and an amendment to a state constitution does not presumptively bear the same meaning as an amendment to the Federal constitution.

I do fully agree with you, though - and I've said as much before - that just because a judge says "this state's constitution prohibits the state from banning gay marriage," that isn't per se judicial activism. It is perfectly possible that a state constitution might require such a construction, in which case, it would be a judge's duty to say so. I think that is doubtfull, as a general matter, but it is possible. Otherwise, one would be forced to the absurd conclusion that a public initiative to amend the state constitution explicitly to permit homosexual marriage could be ignored by the legislature, and that the courts would be impotent.

New Jersey has an equal rights amendment as well. Not to mention this text:

"All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."

Does that require gay marriage? I don't know. I'm not a New Jersey Supreme Court judge. But I don't think it's a stretch to say it does.

DTl,Re the New Jersey text, it sounds like a preamble; I might construe other sections in light of it, but I honestly couldn't say that freestanding, it has any substantive force, and I'd be very suspicious of any Judge who said it did. It is so vague that to interpret it against ay concrete case would almost certainly be an entirely speculative affair. It's up there with Kennedy's "infinite mysteries" slop.

Simon : “… in any event, the U.S. Constitution would bar such a law or constitutional provision.”

I am far from an expert, but I think you are actually saying is simply that the amendment cannot retroactively annul the marriages, not that the state cannot annul the marriages, or convert them to something else or whatever, from the day the amendment passes forward (however unfair that might be), correct?

If that were not true, several hundred thousand MA residents who had their "lifetime" gun permits invalidated a few years ago (with some suddenly ineligible for any new permit) would have had a legal case.

DTL,It really doesn't matter what they put in there. It is, quite literally, meaningless in its infinite malleability. You might be able to legitimately use it to make a purposive argument about another section, but freestanding, any interpretation of it to create a positive right is flat-out made up by the judge. It contains absolutely no kind of guidance as to what it means and what its limitations are; it is the epitome of an unjusticiable text, in that (in the wrong hands) it could reach literally anything. Don't like taxes? Well, why not litigate? After all, "[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are ... acquiring [and] possessing ... property," and so those rights would be respectively infringed by income taxes and consumption taxes. Shot a guy on the street? Never fear, ma'am! Why not litigate? After all, "[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which ... [is] protecting property," and you, ma'am were protecting your handbag, which is your property. Abortion? Why not litigate! After all, "[a]ll persons are by nature free and independent, and have certain natural and unalienable rights, among which are those ... [are] obtaining safety and happiness." Tired of risking getting fingered by the cops when you go out cruising the red light district? Why not litigate! After all, you have "natural and unalienable rights, among which are ... obtaining ... happiness"; you weren't soliciting, officer, you were exercising your right to obtain happiness.

Let me make it more explicit: in my view, any decision by any judge that construed that text as anything other than decorative, is per se judicial activism. The text contains no guidance or limitation. The Federal Constitution's preamble might set a tone for the interpretation of the rest of the document, but its goal of a more perfect union does not establish a private cause of action against the United States Government.

I'm almost afraid to ask, but what does Kelo have to do with the present debate?

"You can say that the phrase means X. You can say that it doesn't mean X. But to say it means NOTHING is flat out wrong."

It is so broad that it could mean anything. And a law that tells judges to "do what you feel is best" is no law at all; it is an invitation to government by judiciary. We're not talking about a Borkian inkblot here - a Ninth Amendment or a priveleges or immunities clause, which are ambiguous to some extent, but which are actually fairly constrained on closer inspection. This is meaningless bilge; it has no judicially-discernable or managable content and should therefore not be cited by judges.

There is a part in the Constitution about takings. Where is the part about gay marriage?

Also, may states have responded to Kelo by passing sensible legislation protecting property owners from takings. So, let's see, a judge makes some baseless decision and people react, through theor legislators or through ballot initiatives or by other mechanisms. Is there any difference here? No.

I love to watch the left squirm and try so hard to play the hypocrisy card. It's cute.

Seven Machos and Simon let me be clear. What I find weird is the assumption in the text that same sex marriages are legitimate (since existing marriages would be unaffected) but that people just don't want the state to recognize any more of them.Don't you find that weird? (Or should I say: "Isn't that an admission by the initiators that their primary motivations are motivated by prejudice?"

If your concern is some version of religious morality and/or 'preservation' of traditional heterosexual marriage then dissolving such marriages wouldn't be 'punishing' anyone but simply saying that the contract is no longer valid or was never valid in the first place - analogously to people who's marriage paperwork is (unbeknownst to them) not in order.

It would also be weird in that it would (presumably) allow a married couple to divorce but not remarry. Weird, weird, weird.

"What I find weird is the assumption in the text that same sex marriages are legitimate"

Right, but my point is that I don't think the text does assume that. I see no kind of assumption that they are legitimate; as I see it, the text simply bows to the inevitable, which is that these marriages have been conducted, and - legitimate or not - they can't be invalidated now, either out of respect for the general perniciousness of ex post facto laws, or out of practical concern that an ex post facto amendment could open the way to a legal challenge.

But as I said in my first post in this thread, none of that is an argument against halting the process now.

Michael -- What's weird is that a law that is blatantly unconstiutitional on its face (an ex post facto law) doesn't seem to bother you but making stuff up about what is constitutional and what is not based on your squarely minority worldview strikes you as just fine.

Michael,Your dismissal of Seven's point might have more merit were it not for the fact that every ruling the state supreme court has made on this issue has been badly fractured. In the instant case, there was a two man concurrence, and in Goodridge, IIRC, the court was split 2-1-2. It won't do to say that seven obviously knows less about it than the SJC, since the SJC has considerable internal dissent (and, let's be honest, courts do not always get it right, see Lochner, Roper, and sometimes they get it egregiously wrong, see Dred Scott, Roe, etc.).

Okay. Here's what I believe: I like laws that increase/support human freedom more than I care about their provenance. Shocking, but true. Yes, it's always good for things to gain election support. But I think there are limits to how far that can be trusted (especially in the case of unpopular minorities). I grew up in the segregated south (I remember local school desegregation from being in school at the time) and knowing the position of whites from the inside I knew that segregation wasn't going to end by elections. You might say I'm wrong, but that was a formative experience for me (in many ways).

With SSM no one's pointed out any legitimate way that this would impinge on anyone's freedom so I'm for it. Appeals to scripture or tradition or folk definitions of marriage don't do it for me. We can't stand still and if same sex couples can establish households I can't think of any reasons why they shouldn't be able to marry.

I'm glad the Mass supreme court ruled as it did and I'm glad that those who want to enter into SSM in the state of Mass can do so. It will be great if it gets supported in elections and very sad for many people if the anti-SSM initiative succeeds at the ballot box (despite the current encouraging pro SSM polling numbers).

Even though I support the original MSC decision, I recognize that the initiative is legit and I'll accept the election results pro or con, will you? (accepting the results doesn't mean agreeing with them or stopping trying to convince people you're right)

Can Seven (or anyone) provide some case support for the notion that the ex post facto clauses apply against state actions other than criminal prosecutions? Or to anything closely analogous to revoking a marriage license? I am no expert on this area of the law, but the contention struck me as surprising. Usually application is only referred to in the context of the criminal law (certainly it wouldn't apply to civil liability).

So they can't have it both ways, can they? Opposing the ERA because it would allow gay marriage and using that as a reason to defeat it. But then when the ERA passes, trying to say that the amendment never really meant that at all.

Well, then. Liberals responded to the conservative charge back then by saying the ERA would not legalize gay marriages. So isn't now saying that it does liberals having it both ways?

In fact, if we're going to interpret an enacted amendment according to what people said at the time it was enacted, isn't the proper way to base it on the statements of those who wrote and supported the change, who at the time made it clear that it was not supposed to legalize gay marriage?